Practice Limited to Wills, Trusts, and Estates
The loss of a loved one is often accompanied by extraordinary grief and pain. Beyond grief and pain, external stresses can create relationship-destroying disasters with little notice. With proper guidance, the Executor of an estate can reduce the level of stress during the probate process. The fundamental duties of an Executor are to protect the assets and interests of the beneficiaries. One way to protect those assets and interests and, at the same time, help the probate process go smoothly, is to have a well-drafted will.
Estate administration (a function of the Probate Court) is essentially a process of transferring title to various assets. If a person dies and no mechanism is in place to transfer title to something they own (like a trust, TOD designation, or joint ownership), then the Probate Court is able to issue an order transferring title to property such as real estate, automobiles, bank accounts, stock, small businesses, and more.
An Executor is required to prepare and file an inventory after the Executor is appointed by the court. The timeframe for this is set by statute. This inventory should detail all of the assets subject to probate. The property must be valued and even appraised as necessary. The inventory provides both potential beneficiaries and creditors of the estate an idea of the estate's assets and claims. (Beneficiaries want to know what they might get and creditors want to know if there is enough money to get paid.) If the inventory is filed late, the Executor could be fined and removed, which would slow down the process .
One thing to realize if you are a beneficiary is that the will may be "read" a few days after the funeral, but the gifts and bequests are not given out at that time. Yes, you may be entitled to the assets, but the inheritance is subject to the estate's administration. The Executor must settle the decedent's debts and claims before he or she can make any distribution of the assets. So, beneficiaries should not go to the decedent's house with a moving truck and start taking whatever they want. Most likely, the Executor is doing his or her job and making sure everything stays where it is until probate is closed.
As noted above, the Executor must keep the administration process moving along by settling all of the decedent's debts. He or she must give proper notices to creditors, to include making publication in the appropriate newspaper. Also, some Executors are under the mistaken impression that all debts must be paid. The Executor's attorney will guide him/her through deciding what bills to pay.
The Executor must keep the beneficiaries in the loop, including providing notice via certified mail that the will has been admitted to probate. In addition, the Executor must inform the beneficiaries regarding any information that might affect their rights.
The Executor is responsible for the care and maintenance of estate property, treating it with even greater care than his or her own property. The Executor is able to sell any property that is perishable or would deteriorate in value during the probate process.
As you can see, being an Executor is a big job. Consequently, the Executor can be removed if proven to have been guilty of any gross misconduct or mismanagement in his/her role. The Executor may be subject to a suit for breach of fiduciary duty. Along the way, there are taxes to be paid and returns to be filed, along with a many other details.
The Executor's attorney's job is to make sure the Executor avoids all the personal liability that is assumed when the person acting as Executor accepts his/her duties.
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